Is the Modern Congress Doing More Harm Than Good?
Articles,  Blog

Is the Modern Congress Doing More Harm Than Good?


Welcome, or welcome back as the case may be. This is our panel, uh, posing the question,
“Is modern Congress doing more harm than good?” I’m Dean Reuter, uh, vice president, general
counsel, and director of practice groups here at the Federalist Society. It’s my pleasure to welcome you. I’m al- I’m also moderating this panel. Um. We’re going to have opening remarks from each
of our four panelists beginning at that end of the table and moving this way of eight
to 10 minutes. Uh, then, as always, we’ll have a little discussion
and we’ll be looking to the audience for questions. So, think of, think of those questions, and,
and we’ll be using these floor microphones. Uh, so if you have a question when we get
to that part of the program, uh, please use the flo- floor microphone. We’re recording, so we need to get you on
the microphone. Uh, in addition to, uh, what you see in the
program in terms of the titles, uh, for our speakers, I wanna just give a couple data
points for each, um. I, I think every one of them is a return guest,
uh, if not, to this particular conference at least, to the Federalist Society. So I thank them all, uh, for, for what they’re
doing here today and what they’ve done for us in, in the past. We’re gonna hear first from Adam White. He is a prolific author, uh, litigator of
complex cases including, uh, he played a role in the challenge to the CFPB case. Uh, and he- he’s, in the past, uh, most notably
worked for Boyden Gray, an associate Boyden’s here somewhere in the room, I know. There he is. Um, so thank you. Thank you for being here, Adam. We’re gonna hear second from Professor Lisa
Heinzerling. Uh, she specializes uh, in m- many things,
but including, most notable for our purposes today, administrative law and the economics
of regulation. And she published several books including
a leading casebook on environmental law. Very pleased to have her with us today. We’re gonna hear then fro- from, uh, Matt
Spalding. Uh, he’s at Hillsdale but at Hillsdale means,
in his case, here in Washington DC where he oversees the Kirby Center, um, o- of Hillsdale
College. He’s also the best-selling author of the book
“We Still Hold These Truths.” Uh, and that’s available at bookstores everywhere
and on Amazon. Um, and then finally, we’re gonna hear from
Elizabeth Wydra. Uh, she is, uh, of the Constitution Accountability
Center right here in Washington DC. She’s also a Supreme Court litigator. She’s argued several important cases on topics
including immigration law, habeas corpus, and sovereign immunity. She has also appeared on and served as a legal
expert for NS- uh, for NBC, ABC, PBS, CNN, Fox News, the BBC and the list just goes on
and on. So, I’ll stop there. Uh, but with that, let’s get started with
opening remarks. Adam White. Here or …
Uh, I think up here is preferable, but not, not required. (clears throat) Thanks, Dean. Uh, thanks everyone for being here today. It’s especially an honor to be on a panel
with a friend and mentor, uh, Matt Spalding. And Matt is going to, I’m sure, cover the
theory and history of this much better than I ever could. So if you don’t mind, I’ll tell a couple of
stories, which I think illustrate what I think is wrong with the modern Congress. They both arise from rec- recent congressional
hearings that I saw. The first was a hearing before the Senate
Commerce Committee, full committee. It had to do with the question of modern regulation
or over-regulation. But it came right on the heels of the, I think
first executive order on, on immigration. And I was struck by how many of the Democratic
senators criticized the immigration orders, and pressed the panelists, prominent lobbyists
to denounce these orders. And denounce the powers that the president
was exercising, and I wanted to stand up and say, “Don’t you see? Congress vested these powers in the president. You handed all these powers to the president. And now you’re left to sort of hope that a
given president exercises it the way you want, you want him or her to.” They didn’t notice the irony of it. I hope others did. The second hearing had to do with the House
Financial Services Committee, a subcommittee. It’s about the Consumer Financial Protection
Bureau and congressman after congressman in pressing the witnesses and in defending the
CFPB, celebrated Dodd-Frank and their achievement in the Dodd-Frank Act, which primarily just
handed immense power to an unaccountable agency. It was interesting to see so many congressmen
celebrating so eagerly, they’re handing away of their own power and making themselves largely
irrelevant. They took that as a victory. I think it’s wrong. Those are what I think Congress is doing wrong,
handing away too much power and handing it to agencies that have no real accountability
especially to Congress. And this is a bipartisan problem. Congress declares victory by handing power
away, shrugging off responsibilities, the Constitution’s first branch and instead, sort
of reducing itself to being a little more than Ombudsman for the administrative state. And I think the best writing on this comes
from one of my favorite legal writers, the late John Hart Ely in a book called “War
and Responsibility” headed with the Vietnam War. I think it’s very relevant to this subject. He said at the beginning of the book, discussing
the transfer of power from Congress to the Executive branch, he said, “It’s common to
style this shift, a usurpation but that oversimplifies to the point of misstatement. It’s true that our presidents generally wanted
it that way but Congress and the courts ceded the power without a fight. In fact, the legislative surrender was a self-interested
one, accountability is pretty frightening stuff.” That’s what I think the problem with Congress
is, our modern Congress, tries to avoid accountability by handing these problems off to other parts
of government. What specifically is Congress doing that does
more harm than good, well, it casually hands off immense power to agencies and compounds
that power by sitting by idly as agencies claim even more power through, what we’d say
in property laws, adverse possession. Basically allowing agencies to assert squatter’s
rights over powers that they never received. Congress fails to reform and modernize the
laws governing the agencies like the Administrative Procedure of 9- Administrative Procedure Act
of 1946, of 1946, a seven-decade-old statute that Congress is afraid to reform and modernize. Congress understaffs itself. It cripples its own oversight powers. And I think Congress forgets Madison’s exhortation
in Federalist 58 that the power of the purse is the most effectual tool that Congress has
for reining in the other parts of government. We see of it, we saw that in Dodd-Frank in
the way that it created an agency, the CFPB, that’s not funded by Congress. It’s not subject to the power of the purse
but even in the agencies that are funded by Congress, the appropriations process is a
mess. It creates an annual head-on collision, a
cliff, that creates a situation in which Congress really can’t do anything but allow the Executive
branch to have its way and that needs to be reformed. So let’s not blame Congress too much because
maybe the real fault lies with us, with all Americans. We demand too little of Congress. We expect too little of Congress. The people that we voted into office, and
I, I think of um, another office, uh, author C.S. Lewis. He said in the abolition of man, an abolition
of man, he said, “We make men without chests and expected them virtue an enterprise. We laugh at honor and then we’re shocked to
find traitors in our midst. We castrate and we bid the geldings be fruitful.” We need a more ambitious Congress. I’m not the only one who thinks that. James Madison thought that. It’s the whole point of Federalist 51, right? Let ambition, we, we rely, our Constitution
relies on ambition counteracting ambition and the interests of the office holder being
attached to the rights of the place. So we need a more ambitious Congress and we
need congressmen who see themselves as congressmen and who have, are vested with the interests
of Congress. Now all that sounds very hopeless. I’m actually hopeful or optimistic. Um, we’ve seen recent legislation, things
like the REINS Act, the Regulatory Accountability Act, which the House has passed and maybe
the Senate will too, which tries to reclaim power from the agencies, either by pulling
back delegations in the REINS Act or by updating the APA with Regulatory Accountability Act. I think those are both good developments. In the last election cycle, which was a bewildering
election cycle, I think we’ll all agree, there was a very eloquent argument made in favor
of conservatives voting for Trump. It was by Charles Kesler, Chris DeMuth and
other extremely thoughtful scholars who said that Congress had really in recent years,
taken on as a fundamental principle, the reassertion of Congress’s power in these laws. And that these sort of unusual rise of a president
who wasn’t as wedded to the party but there was an opportunity for Congress to continue
to assert checks and balances in a way that, that we haven’t in the past because people
like Charles Kesler, Chris DeMuth and even Senate Majority Leader McConnell and Speaker
Ryan, I thought it was a powerful argument then and I think it still is. And I think we have an opportunity in the
bills that have been passed so far and in Congress is carrying out of its duties to
really vindicate the argument of Kessler and DeMuth and others. And I hope they do. Thank you. I’m going to take advantage of an ambiguity
and the title of the panel description, which is, “Is the modern Congress doing more harm
than good?” and I’m going to take modern Congress to apply not just to the past Congress, that
seems to be the subject of the panel description but to the current Congress. And to ask how well the current Congress is
doing in uh, achieving uh, ambiguity and my answer then to the reposed question, “Is the
modern Congress doing more harm than good?” Is, I think um, yes. So that the notion of harm that underlies
the question posed for this panel is that of unaccountable bureaucracies and delegating
power to these uh, organizations uh, but the uh, unaccountability through delegation is
not, in my view, uh, the kind of accountability problem that we’re seeing, at least so far,
in this uh, Congress and the notion of accountability is itself contestable. So let me, let me spell that out a little
bit uh, more. I think the assumption underlying the, the
worries about delegation to administrative agencies is that uh, the only way to achieve
or to promote accountability is uh, through the electoral process and yet, I think that
there are ways to make um, legislation, to pass legislation that actually uh, is, is
uh, less accountable than other uh, other kinds of legislation. I’m going to give two examples here from the
current Congress. One, are the resolutions of disapproval under
the Congressional Review Act? And the other, is the pending legislation
to amend the Administrative Procedure Act, what was just uh, referred to the, the Regulatory
Accountability Act? I’m gonna explain why I don’t actually think
that the current Congress uh, is uh, is helping in terms of uh, accountability. First, the Congressional Review Act, the,
the Congressional Review Act as you know, limits uh, debate to 10 hours in the Senate. Uh, there is no amendment though to the underlying
statute under which the rule was promulgated and a rule that is disapproved under the Congressional
Review Act um, uh, may not be enacted in a way that is substantially the same as the
disapproved rule. And one could say, on the one hand, maybe
this, this legislation promotes in a- accountability insofar as Congress has to actually stand
up and, and disapprove a specific rule and perhaps in that way, it can be held to account
for uh, the position on that rule but let me suggest several ways in which I think that
this act actually limits rather than promotes accountability. When I think the limit on debate in the Senate
prevents the normal kind of fleshing out of problems and deliberation that might attend
legislation uh, pass through the uh, uh, routine process, uh, to, it seems to me that undoing
regulation without amending the underlying statute, means members of Congress don’t need
to take the political heat for actually changing the underlying statute. They can say, for example, we haven’t touched
the Clean Air Act and yet, they can still undo important regulations under that statute. And this can be, I think uh, a maximally bad
a- situation actually uh, for uh, in terms of accountability. The interests opposing a regulation under
the Congressional Review Act are concentrated. They’re concentrated on a specific rule affecting
specific regulated entities in specific way and there’s a large incentive, therefore,
to press for the undoing of that rule under the Congressional Review Act. By the same token, one doesn’t under- uh,
uh, undo the underlying legislation or changed the underlying legislation then the representatives
in Congress can still represent to their constituents, “We haven’t touched the Clean Air Act. We haven’t touched laws relating to protection
of um, financial consumers.” and so forth. And so in that respect too, it seems to me,
accountability uh, can be diluted. I think the same thing is true of legislative
proposals to amend the Administrative Procedure Act and here I find the um, uh, Regulatory
Accountability Act, particularly, misnamed. It strikes me that that statute, which is
a fundamental change to the 70-year-old Administrative Procedure Act, uh, that statute would uh,
pile on analytical and procedural obstacles to rulemaking and therefore, in a quite, I
think, uh, surreptitious way, make it very difficult for agencies to uh, enact ambitious
regulatory programs. Again, without changing the underlying statutes
and so that representatives can still say to their constituents, “We haven’t touched
those statutes that you might care about. We’ve just made the process for uh, issuing
rules different.” So again, I’ve, I’ve changed the question
to refer to this Congress and our evidence about how this Congress will behave is obviously,
very, um, very new and incomplete and yet, I think the early signs are, are not in ter-
encouraging in terms of promoting accountability. Thanks. Thank you. Uh, good afternoon. It’s good to be with you. Thanks for having me. Um, the title of our panel, “Is Congress,
is the modern Congress doing more harm than good?” seems to me, begs at least two questions. Uh, one is the nature of the modern Congress
and the other is what is the harm or good of that? Uh, more questions are raised in turn by the
theme of your conference, which is about the relationship between Congress in the Executive
branch. The modern Congress as well as the modern
executive and the harm caused by both it seems to me is a function of the new form of rule
created by Congress and facilitated by presidents that is coming to overwhelm us, bring forth
the broadest perspective. That the development of the rule of law on
constitutional government is the most significant accomplishment of the long history of liberty. The greatest political revolution in the United
States since the Constitution has been the shift away from the lawmaking institutions
to that repo- to that oligarchy of experts, it was early referred to. Congress has had that funding hand in all
this, of course, though the modern executives are not at fault. The difference being that Congress’ role is
led to its weakening. Its handicraft, uh, handiwork, on the other
hand, it’s created the conditions for a new virtually imperial presidency. The result is an increasingly unbalanced structural
relationship between uh, the executive bureaucratic branch that can act with or without Congress
communications, an era-weakened Legislative branch that seems unable or unwilling to exercise
its powers to check the executive or rein in the bureaucracy. One only needs to read Shakespeare to see
that Anglo-American history, for a thousand years is replete with the back and forth between
despotic rule and slowly developing concept to the rule of law. The full implications of this only appear
in the institutions and the principles of the American Founding. The key turn comes with the formal recognition,
previously in theory but first expec- expressed in the Declaration of Independence, of inalienable
rights that belong to each person by the laws of nature and nature’s God and that to secure
these rights, governments are instituted among men deriving their just powers from the consent
of the governed. Consent legitimates government and underscores
lawmaking by representative institutions. The form of the Constitution further separates
those powers, duties, and responsibilities, according to the primary functions of governing,
to make laws, to execute laws and to adjudicate laws according to particular cases. Creating a turn to separation of powers. Strong, energetic government of limited authority
powers enumerated written, written constitutions, separating the functions, responsibilities
further divided national and state, all designed secured individual rights leaving room for
self-government. The modern state, on the other hand, can be
traced to continental utopians of the 18th century, deeply enamored by the endless promises
of reason in modern science. The late 19th century progresses took this
argument combined it with German idealism and historicism and Americanized it to shape
the old constitutional system into a new more efficient form of democratic government. Government must evolve and expand, we were
told, and be ever more actively involved in day-to-day American life but there is also
no longer any principle that limited the actions to stay. To encourage this change while directing and
controlling it, they posited a sharp distinction between politics and what they called administration. Politics remain the realm of expressing opinions. Hence, the continued relevance of Congress
to provide rough guidelines but the real decision is details we made by administrators often
found in various agencies, uh, things we call, the administrative state. But they would be objective in neutral experts. They could act above petty partisanship in
faction, mostly unseen and beyond public scrutiny, to accomplish the great objectives of policy
reform. We’ve been going down that path in [inaudible
00:19:16] and support starts for some time and yet almost from the very beginning, the
administrative state was bifurcated and most of its history can be read as a battle between
the president and Congress for control over it, especially after cases like Humphrey’s
Executor in 1935, the failure of the Brownlow Commission during the New Deal. At first, Congress had the better the fight
with the presidents and presidents tried as they could to control the fourth branch. Congress, after all, had created the darn
thing. Now and, and all these agencies to carry out
its wishes, delegating legislative powers. A chief objective of the Great Society was
to further centralize administration and expand those regulatory activities on a society-wide
scale. Congress, again, was the first to adopt the
administrative state, continuously reordering their self since 1970 by committees and subcommittees
to oversee and interact with the day-to-day interactions of the bureaucratic apparatus. As it expanded, Congress tried as it could
to keep up with its creation but over time, Congress, by default, has largely come to
focus on oversight and regulatory relief. Today, I would argue the primary function
of government actually is to regulate. Congress writes legislation, very broad language,
turns extensive power over to agencies, we’re all familiar with that. They’re giving authority to execute, often
adjudicate, violations of those regulations in particular cases. As a result, most of the actual decisions
of elected legislators, excuse me, of uh, lawmaking public policy, previously, the responsibility
of legislators, are delegated to those bureaucrats whose rules, no one doubts as a practical
matter, have the full force and authority of law. And as Congress expanded bureaucracy, creating
these agencies, delegating its power, losing control in the meantime of the details of
budgeting, focusing on ex-post facto checks, the executives have grown to new levels of
authority. And while Republican presidents mostly tried
to control the bureaucracy, try as they may, Democratic presidents found it more to their
liking. Now, like never before, the Executive can
lead a willing bureaucracy through a combination of executive discretion, poorly written laws,
willful neglect and disregard toward their policy ends with or without the cooperation
of Congress. Once it’s established, the president can govern
by executive order in regulations. Without Congress, it will prove difficult
and impossible to prevent future- future executives from following the president, regardless which
party they belong to. This idea, I would argue of administration
is not merely an aspect of modern politics, a necessary adaptation to modern times. It’s a new and all-encompassing form of political
organization to symptom. So assuming this is not a symptom but a disease
of modern government. Congress is an act to correct this growing
tilt toward bureaucratic power, anomaly under the modern executive, the structure of government
will be fundamentally altered, some perils of constant design and great, in the greatest
achievement of republican government. So can Congress be made great again? Maybe a prudent option to certain checks and
balances through litigation but courts aren’t going to solve the problem. Indeed, the notion of Legislative branch going
to the Judicial branch to solve its problems with the Executive branch seems to me to be
rather feckless. The real solutions for Congress strengthens
constitutional muscles as a colloquial branch in our separation of power system. Important steps around the edges or in the
works, the REINS Act, APA reform, Chev- uh, repeal uh, Chevron deference. Likewise, the continued increased use of Congressional
Review Act is very important but these actions are just that, mere steps and not a substitute
for actual legislative control over today’s labyrinthine state. Regular legislative order, especially, the
day-to-day back and forth of authorizing, appropriating and overseeing the operations
government will do more than anything else to restore Article I powers of Congress and
bring consent and responsibility back to government through better lawmaking. In one place where the power of Congress is
not entirely lost, as Adam mentioned, is the power of the purse strategically controlling
and using the budget process could turn it, the advantage back to Congress, forcing not
only the Executive to engage with the Legislative branch and get back in the habit of executing
the law as enacted by Congress but also, bring the modern administrative state to heel. Congress needs to think strategically and
act like a constitutional institution, indeed the primary branch of constitutional government. This is especially important in the moment
when unified control of government to conservative Congress and a president who seems willing
to confront the bureaucracy, perhaps more than any executive since Reagan, presents
an unprecedented opportunity to challenge bureaucratic rule in the name of popular government. But for that confrontation to assert the ends
of constitutional government, Congress need to get its House and its Senate in order. Thank you. Thank you so much. It’s a pleasure to be here and to be on this
panel with um, with this esteemed group. As Dean mentioned at the beginning of this
panel, I’m the president of the Progressive Constitutional Accountability Center. We’re dedicated to uh, fulfilling the promise
of the Constitution’s text history and values. And I am always pleased to come back to the
Federalist Society because in an era in which civil and reasoned disagreement about important
issues that we all care about is, unfortunately, increasingly rare. Um, I’m delighted to be part of this uh, conversation
and um, thank you for having me and hearing my views. So uh, the set up to this discussion in the
invitation that I was sent is uh, President Reagan’s famous quip that the nine most terrifying
words in the English language are “I’m from the government and I’m here to help.” Now, uh, Reagan was joking sort of and I swear
that I have a, a sense of humor. I’m not one of those humorless liberals everyone
talks about um, but uh, you know I’m not really for this kind of anti-government attitude,
particularly, because I respect and admire those who give their career to public service
as many of you um, in this room have at one time or another um, even though it can be
easy to be cynical and just bash Washington. Um, but I, I swear I’m more fun than that
opening paragraph would make me seem. Um, so I want to follow up on what Professor
Spalding did, which is take a slightly broader view um, because I think when we’re thinking
about that uh, context of you know, is it frightening when someone says, “I’m from the
government and I’m here to help.” Um, the fact is that from a constitutional
perspective, our Framers created a constitutional system where our federal government would
have the flexibility and the ability and the authority written into the text of the Constitution
to act for the common good in situations where that national help would be needed. Our Constitution establishes a vibrant system
of federalism that gives broad power to the federal government to act in situations where
a national approach is necessary or preferable while, of course, giving the states, the uh,
a significant role to craft innovative policy, solutions that reflects the diversity of America’s
people, places, and ideas. With the failed Articles of Confederation
in that document’s feeble central government chief in their minds, George Washington, James
Madison and the other delegates to the Constitutional Convention, shared a conviction that the Constitution
must establish a national government of sufficient substantial power. In considering how to grant such power to
the federal government, the delegates adopted resolution six, which declared that Congress
should have authority “to legislate in all cases for the general interests of the Union
and also, in those to which the states are separately incompetent or in which the harmony
of the United States may be interrupted by the exercise of individual legislation.” The Constitution’s drafters took this charge
and then, of course, wrote substantial congressional powers into Article I. So stated simply, our Constitution was drafted
to ensure that the federal government had enough power to ensure that there could be
national solutions to national problems and federal agencies have become crucial to fulfilling
this constitutional mission. In recent years, Congress has taken this charge
seriously, passing legislation, tackling environmental issues, including the Clean Air Act, which
uh, has been interpreted to give Congress and the agencies authority to regulate climate
change, health care reform through the Affordable Care Act, of course. But before that, Medicaid and Medicare and
consumer protection and financial regulation most recently, through the Dodd-Frank Wall
Street Reform and Consumer Protection Act because the CFPB has been specifically mentioned
um, and uh, is uh, increasingly under attack from all sides. (laughs)
I’d like to spend a few moments defending that body, as what I think is an example,
not just in that particular case but also, of the importance of the way that agencies
can be part of this constitutional mission to provide national solutions to pressing
national problems. In order to appreciate why the CFPB was created
and how it is beneficial to the nation, we need to go back nearly a decade. Um, as we all remember uh, been probably frighteningly
looking at our uh, uh, 401Ks. Um, in 2008, the nation plunged into the worst
financial crisis since the Great Depression. As the Senate Committee on Banking, Housing
and Urban Affairs noted six years ago, from the start of the crisis through March 2010,
more than eight million jobs were lost. Resulting in the highest rate of unemployment
since 1983. American household wealth fell by more than
13 trillion. Retirement assets dropped by more than 20%
and more than seven million homes in America entered foreclosure. Now, I know it’s easy to let those big numbers
and statistics fly by but for every one of those numbers was a living, breathing American
whose life was devastated. After more than 50 hearings dedicated to probing
and evaluating the causes of this economic downfall and assessing the types of reforms
needed, Congress concluded that this devastation was made possible by a long-standing failure
of our regulatory structure to keep pace with a changing financial system. More specifically, Congress found that the
financial crisis was precipitated by the proliferation of poorly underwritten mortgages with abusive
terms, followed by a broad fall in housing prices as those mortgages went into default
and led to increasing foreclosures. Enabling these dire events was, as Congress
said, the spectacular failure of the prudential regulators to protect average American homeowners
from risky and unaffordable financial products in favor of protecting the short-term profitability
of banks. And a key explanation for this regulatory
failure Congress found was the fact that consumer protection in the financial arena is governed
by various agencies with different jurisdictions and regulatory approaches, resulting in a
disparate regulatory system that has been blamed in part for the lack of aggressive
enforcement against abusive and predatory loan products that contributed to the financial
crisis. So faced with this national problem, this
crisis, what was Congress to do? To remedy these failures, prevent a recurrence
of the same problems and create a new regulatory framework that can respond to the challenges
of a 21st-century marketplace. Congress in 2010 enacted the Dodd-Frank Wall
Street Reform and Consumer Protection Act, a key part of which was the creation of the
Consumer Financial Protection Bureau, the CFPB. I should note that in the DC Circuit litigation
that’s ongoing over the CFPB, um, my organization represents the primary drafters, Mr. Dodd
and Mr. Frank um, as well as other Democrats in Congress who were sponsors and promoters
of the law, um, we filed a brief in that case supporting the constitutionality of the CFPB. And so obviously, I have a point of view here. (laughs) Um, the CFPB was created to have
the independence, resources and mission focus needed to prevent a recurrence of the problems
identified after the financial crisis and respond to the challenges of an evolving financial
marketplace. Congress structured the bureau to be led by
a single director, serving a five-year term, rather than a multi-member commission to avoid
the delay and inaction to which commissions are susceptible. And to insulate the bureau from political
interference and industry pressure, Congress provided that this director may be removed
for good cause. That is inefficiency, neglect of duty or malfeasance
in office but not for political disagreements alone. Obviously, people are thinking a lot about
removing uh, directors of agencies but I’m going to leave that where it is. Um, anyway, opponents of the CFPB contend
that this arrangement violates the constitutional separation of powers because it deprives the
president of the ability to remove the dec- director at will based, for example, on a
policy disagreement or simply a desire to put um, someone of his or her own choosing
um, in that position. But I submit that this argument has no merit. To start there is no support in the Constitution’s
text or history for the proposition that an officer, like the director of the CFPB, must
be removable at will by the president. The Constitution does not really address the
power to remove executive offer- officers from their position, other than obviously
giving Congress the power to impeach. And the topic of removal was not uh, discussed
in great length at the Constitutional Convention in Philadelphia. Although, the Constitution provides for executive
officers to, as George Washington wrote, assist the supreme magistrate in just discharging
the duties of his trust, setting forth a small number of rules regarding their appointment
removal and responsibilities. There are a few textual limits imposed by
the Constitution on Congress’s ability to structure administrative government. The Framers ensured however through the Necessary
and Proper Clause that future Congresses would have the flexibility required for shaping
the government to the demands of changing circumstances. By granting Congress the authority to, as
we all know well, make all laws, which shall be necessary and proper for carrying into
execution powers vested by this Constitution in the government of the United States or
in any department or officer thereof. Indeed, participants in the Philadelphia Convention
rejected a plan that would have enumerated specific executive departments and prescribed
their duties in the Constitution itself. Partly out of a desire to leave to successive
Congresses through the medium of that Necessary and Proper Clause, the flexibility required
for shaping the government to the demands of changing circumstances as administrative
law expert Peter Strauss has explained. Now, as Chief Justice Marshall observed, this
clause, like the Constitution itself, was intended to endure for ages to come and consequently,
to be adapted to the various crises of human affairs. “By contrast,” he said, “to have prescribed
the means by which government should, in all future time, execute its powers, would have
been to change entirely the character of the instrument, resulting in an unwise attempt
to provide by immutable rules for exigencies, which if foreseen at all, must have been seen
dimly and which can be best provided for as they occur.” In some, the Constitution was drafted to ensure
that our federal government has the ability and the flexibility to provide national solutions
to national problems. In exercising these powers, the Constitution
gives Congress significant power to shape the structure of federal agencies and to give
their leaders a degree, a degree of independence from presidential control. The Framers deliberately provided such flexibility
to Congress so that future lawmakers could respond effectively to new and unforeseen
national crises. Congress exercises discretion after the devastating
financial crisis of 2008, making a considered decision that is independent CFPB, led by
a single director could best combat the types of consumer financial abuses that caused the
near-collapse of the American economy. Congress had every right to make this choice. The Supreme Court has long recognized that
heads of regulatory agencies may be shielded from removal at will and the CFPB is materially
indistinguishable from the agencies addressed in Court’s prior decisions. Thus, the bureau’s leadership structure is
constitutional. Now getting back to Ronald Reagan’s uh, famous
quip, I would suggest that if you’re one of the 27 million consumers who were compensated
after the CFPB went after misconduct by big banks and got more than 11 billion dollars
in relief, not to mention one of the millions of Americans who had access to quality, affordable,
secure healthcare under the ACA or a person of color or a person of faith or a woman who
is protected by enforcement of civil rights laws by our agencies. When someone shows up and said, “I’m from
the government and here to help.” you probably breathe a sigh of relief, not
react in terror as Ronald Reagan would have it. So thank you so much for having me. I look forward to our discussion. So we have floor mics on either side of the
room. If you have a question, uh, you can uh, approach
one of those microphones uh, a- and, and let us know you have a question. Um, I wanna uh, a- at least uh, give this
side of the table a chance to respond to what followed from their remarks but as you do
that, uh, it seems to me that one thing that keeps um, uh, uh, uh, emerging here is o-
our issues of co- accountability and I’m wondering if, if, is it axiomatic that uh, the, the,
the exercise of power uh, should, should be accompanied by accountability and if that’s
the case, how do you rank these various institutions of government in terms of their accountability
to the people? A- and I’m thinking of where is, where does
Congress sit uh, where, where, where the, where are the courts in terms of accountability
and, and where are the agencies? And is it fair to pair the agencies with the
president? Or are those severable entities uh, since
uh, and you know, I, I remember statement by President Obama with, with regard to the
IRS scandal that he had no control over the IRS. Um, he, he couldn’t really influence them,
I, that I’m paraphrasing obviously um, and then issues of a removal power but where would
you put those? I mean Justice Scalia obviously, I think i-
in his support of, of Chevron for example, uh, thought that the judiciary was perhaps
less accountable to the people than were administrative agencies. So um …
I, I think um, some of this depends on what one’s notion of accountability i- is. As I suggested, one notion would be simple
uh, uh, accountability through the electoral process but if you think of accountability
more broadly, then I think it could be argued that administrative agencies are the most
accountable institutions in the governmental uh, system. They are not subject to the abuses of money
and politics uh, in the same way that uh, the members of Congress are. They have uh, in, in some ways, a much uh,
bigger public facing aspect to them. They hold public hearings. They meet with people constantly. They’re constantly in touch with people who
are affected by their, by their rules and at the end of the day, they have to give a
reasoned explanation for what they do. They have to explain on pain of being uh,
uh, overturned by the courts. They have to explain why they’re doing what
they’re doing. None of those um, that requirement is not
applicable to our elected representatives and so if you take a bit broader view of accountability
then it strikes me that administrative agencies may well be at the top of the list. I mean it’s hard to, it’s hard to overstate
how profound my disagreement with all that is. (laughs) Um, I mean I think what you’re saying
is agencies are the most accountable because they have to sort of smile politely while
they receive comments and then they, and then tell the people while the people aren’t going
to get what the people are asking for. Um, when it comes to accountability, nobody
said it better than James Madison uh, to quote him over and over again but he said, “Yes,
Democratic politics, Republican politics is messy but there was a remedy for that and
it wasn’t an administrative remedy. It wasn’t a technocratic remedy. It wasn’t even a judicial remedy. It was a republican remedy.” Lower or although, we can debate about that
too (laughs) um, but at the end of the day, we were trusting politics to solve these things. There’s so much flight from politics right
now. So many issues that want to be taken away
from politics and put into the courts to be decided or put into agencies and it’s the
same problem. At the end of the day, Congress is in its
design, the most accountable, truly accountable branch and it needs to remain so. Congress needs to be the center of our political
gravity. The Executive branch has energy but at the
end of the day, Congress has to have the gravity in our government and any single agency might
be justified. I don’t disagree with that except for the
CFPB but any agency might be justified on its own. The first Congress struggled greatly with
how to create the initial agencies but you have to step back and look at the forest for
the trees. What we have is a collection of agencies,
an administrative state I’d call it, that has now become the center of gravity in our
politics, the president can walk away from legislative debate, knowing he has his agencies,
members of Congress can walk away from these debates. It has become the center of gravity with this
gravitational pull on our politics that’s deforming our politics and undermining our
ability to govern ourselves. So I, I disagree. (laughs)
Uh, Matt or Elizabeth, anything on this point? Uh, I, I just under- underscore what, what,
what Adam said. He used the phrase I was gonna use, the missing
the forest for the trees. Uh, the whole setup of the American system
is to be a republican remedy to the problems of a republican government. Um, we need more politics not less, so we
have more accountability. Uh, the, the idea that accountability can
come from uh, the, the benign expertise of those that aren’t elected and aren’t responsible
through election is, is a deep violation of Democratic, uh, Democratic theory, uh, which
is why I think something like the CFPB um, is, is, is a real problem. Any agency that is self-funded and, and set
up to be virtually unaccountable, um, setting aside whether you think its policy outcomes
are good or not, uh, v- violates that notion of, of accountability um, and, and again,
A- Adam is right. The, the accumulation of all these things
has become something, so I can say this as the only, as far as I know, the only uh, uh,
political scientists on this panel of, of legal minds. Um, sometimes we have to point out the obvious. I mean you know, Caesar’s crossed the Rubicon
here, right? Uh, the, the way we govern ourselves has radically
changed in this government, uh, and we need to step back and take this, take a much broader
view. Um, this government and its, most of its operations,
most operation that affects most people on a regular basis is not susceptible to their
opinions, which is why, surprise, surprise, we’re getting a politics, which is increasingly
upset by people like Donald Trump. Uh, there’s a lot of pushback against this
form of government and uh, I don’t blame the American people for trying to figure out how
to change it. Elizabeth Wydra, you’re leaning in. Yeah, I think you know, there is an obvious
accountability here, which is Congress. You know, you don’t like that the CFPB is,
is uh, independently funded. Congress can change that. You know, vote in people who will change that. If you don’t like it-
But the la- law says you can only change it on Saturday when the moon is full, right? I mean the way it was written-
Wait, you don’t think you can actually do that? (laughs) I mean we’re letting Congress off
the hook here. I mean, I, I think that that is the answer
to a lot of these things- I agree with that. Instead of um, uh, saying that you know, we
have this thing we can’t do anything about. Look, I think a lot of these things are, I
think a lot of agencies and what they do are important, so I’m going to vote for uh, people
who are going to make sure that I have clean water and clean air and safe food. And you know, if there are things that you
don’t like about the CFPB, then you can exercise your accountability, measure at the ballot
box and get people voted into Congress who support that. I think that’s a clear constitutional piece
of accountability- Right, right. That I agree with completely. Congress should get rid of the darn thing. (laughs)
Look, that’s you know, that, that’s the American people speaking. I think they shouldn’t. So you know, that’s how it works. I think, Elizabeth, if you listened to the
tape this morning from Senator Mike Lee, you’ll find, as the saying goes, you’re in violent
agreement with Senator Mike Lee. (laughs) Uh, let’s take a question from this
side of the room if we could. Yeah, I got bent to disagree. I don’t think you fellows have presented enough
of what the real problems are and on what the possible solutions uh, can be. I, I work for uh, (inaudible) administration
several years ago and I was in, in charge of trying to optimize health care and education. And one of the things I learned is that the
government every day makes, every year, makes millions of these issues about approval and
denials of immigration, social security, etc., and tens of thousands a major decision about
health, welfare, food, everything we need. Congress is not competent, it’s not qualified
to make the tens of thousands of important and millions of daily decisions. It’s very able to make three or four decisions
a year that make some sense. So I think the Constitution on the right,
Congress passes the laws and both associations is executed. The real problems are not in the issues that
you brought but I think the problems are that the people who are in charge or at least,
some of the people who are in charge of implementing the Constitution are not perhaps suitable
for their intended jobs or not quite competent. And I think the real rule should be that Congress
should make the optimization rules. You talk all about ac-accountability, you
cannot have accountability if you don’t know what you’re optimizing. What is important for me to accomplish, which
is for me to get 10 billion dollars from each one of you is probably not the same of what
you want to accomplish. So if you don’t have an optimization rule,
what you’re trying to accomplish, you cannot have anything to measure. So Congress should say, “This is what we’re
trying to accomplish. This the optimization rules.” Maybe something like the president’s powers-
I think, I think we’ve got, I think we’ve got it here. Um, uh, Adam or Matt, you want to take a first
shot at that? Well, I, I, I don’t think that, that the claim
here is not that um, uh, Congress should do everything and there should be no uh, regulation
at all. The, the American Founders were laid out of
uh, uh, an argument for regulation, uh, but to rise of what Ha- Hamilton says in the Federalist
Papers, right? The idea that the government is best administered,
is best as a heresy, right? Uh, the promise that the, the extent of, of,
of, uh, administration and delegation has gone to a point where I think it is, it, what
violates in principle and in form, how the, the, the government is, is supposed to operate. Yes, you need agencies. Yes, you need uh, people who can, who can
do particular things but uh, you know, unless Congress is on top of it, uh, year-to-year,
day-to-day through its budgetary process and other uh, powers it has, that thing is going
to go off on its own. The one thing that Madison was absolutely
right about, which is still true today is, is, is human nature. Um, that’s why we have a, a Congress to keep
an eye on it. That’s right. Uh, Lisa or Elizabeth? I’m going to push back a little bit on that,
on the, on the human nature argument um, and, and, uh, the, and, and Adam, you invoke the
Federalist 51 that power set against power. Um, i- it seems to me that, that, that’s failed
fundamentally in Congress. I think you pointed it out yourself, Adam,
that, that it might be human nature to accumulate in and exercise power but Congress has done
exactly the opposite. Unless, you can get yourself to a point where
you think that the thing itself, the office itself is the power and that everything Congress
is doing, individual congressmen and women are, are doing is to preserve uh, the- their
term in office and to get re-election. They’re not exercising power. Yeah, and … y- yeah. I thou- you keep quoting Madison over and
over again, and now, I can’t remember, which number I wanna cite. So it’s one towards the back. Uh, we’re mad- (laughs) We talked about uh,
right, the, the, Madison and, and the Founders recognize that we’re all imperfect and we
need a government that’s going to be run for imperfect people, by imperfect people but
Madison also recognize that our republican government presupposes and greater than any
other form of government, a basic for- a basic level of republican virtue and civic virtue. Um, and that’s why I ultimately focus not
so much on Congress but on those of us who elect Congress because I think we need to
focus more on, on how we see our government, how we see each other and how we see the people
were electing to that government. Lisa? Listen, I’ll qui- quote Madison too. (laughs) Uh, if men were angels, no government
would be necessary, right? So basic purpose of government is control
human behavior and to keep people from hurting other people. And so a question arises when we look around
and we see that we have agencies that perhaps we think have gone too far. We, we’d like some delegation apparently,
but not too much then a question is what branch of government should be correcting that? And I think that it’s turned out to be very
controversial and seldom done to have the courts be the corrective to the over-delegation
of power to administrative agencies. And so I think to some extent, this panel
is in agreement about Congress should do more in this, in this regard. They’re ultimately, the people who hold the
power. I then find it ironic and, and sort of a-
actually astonishing when one goes to testify in Congress about a statute that’s under um,
attack uh, in Congress. Let’s say the Clean Air Act. Uh, it, they’re very, very um, uh, upset if
you throw something back to them and say, “You know, you all have the power to change
this. If you don’t like this statute, you have the
power to change it.” That’s just never a popular thing to do at
a congressional hearing and that’s, yet that’s, I think, what we’re all saying to some extent,
is what should happen. Let’s take a question from over here. Uh, I’ve listened to all uh, the panels this
morning and it seemed to be that the entire discussion is the shortcomings of the Congress. In fact, your panel’s title, “Is the current
Congress of doing uh, more good or bad?” I, my question is why don’t we ask the same
question of the Executive branch? As bad as the administrative state is and
as large as it is, I have some familiarity with that, one of the biggest problems is,
the growth of the federal deficit. I hadn’t heard, maybe you have, anything in
their last election by either a Democrat or a Republican, to address the size of the federal
deficit nor in and, and, and most of the other debates uh, and other elections. So uh, my question is if you, if I ask the
panel, is a modern executive doing more better uh, more harm than good? I think I would be interested in your response
to what you think of the executive branch uh, uh, participation and, and ability to
address the problems because most certainly, I think the, the, um, the, the nature and
magnitude of the federal deficit is, is every bit as big as the growth of the administrative
state and I applaud the Federalist Society for, for, for addressing the size of the administrative
state but it appears that most people in Washington really don’t care about the level of the deficit
and, and, and the president can’t control it but he most certainly can be any present,
be the bully pul- pulpit to correct that and I’d be interested in your views of whether
you think the modern executive is doing more harm than good. I’m sure our panelists are qualified to speak
about that if they’re inclined to. Um, you know, on our fe- on the Federalist
Society website, we’ve, we’ve undertaken that, that question before um, this conference was
designed with the different purpose in mind but I’ll give the, the panelists a chance
to respond. So I, I raised that in my paper. The way I see it is that Congress, they’ve
already done their harm and now, they’re virtually a worthless institution until they get their
act together. Uh, but in doing so, they’ve turned this apparatus
over to the modern executive and uh, modern executives still have the one key to human
nature that Adam mentioned earlier, ambition, um, which means they can use that for good
or for ill, for good or for harm. Uh, and I think we’re seeing that in recent
presidents who can use their opinions and phones. Uh, so I, I, I would worry about that but
again, it points back to Madison’s solution, right? It’s to make those two branches compete with
each other and right now, Congress has pulled out of the game, which leaves, leaves an open
road for the modern uh, executive. Uh, I have frustrations with all three branches
of government. I could get into the judiciary too if you’d
like but I agree. (laughs) The executive uh, has, has problems
of its own. But, but keep in mind, the point here is that
uh, the, thi- thi- this, the thing we’ve called the administrative state does not exist in
a vacuum. Uh, the, the, we, we have as, interesting
phenomena where there are two regimes existing in United States at the same time. Uh, there’s this new regime of uh, of administrative
regulatory procedures and there’s this old constitutional regime, which is trying desperately
to get control over the other one and they’re fighting over it. Uh, and right now Congress is losing that
battle and the executives’ figuring out how to do it and the courts are increasing, get
involved in that too. Actually, can I make a serious point? Um-
Yes. You know, people in the federal society know
that when the Supreme Court in the mid-twentieth century began to make the Constitution, its
sort of exclusive province. The problem wasn’t just that the court expanded
its work but the other two branches started to lose the ability to speak in the language
of constitutionalism. And I think something similar happened with
the administrative state. The Executive branch asserted more and more
power over uh, the administrative agencies for very good reasons, very good reasons um,
beginning with FDR, all the way through Reagan but the cost of that was the Congress lost
the ability to speak the language of administration in the same way, right? It ceded too much, I think, to uh, to the
executive branch and, and I think that’s another important dynamic that needs to be corrected. I think w- we should be careful about um,
worrying about executive power only when um, our executive is not in office and I’ve always
thought or thought for a very long time across administrations that we ceded too much power
to the president and um, too much power to the president under statutes that don’t give
power to the president himself but give power to the executive agencies. And uh, so I know that many people in this
room will disagree with that but I’m always surprised at how the Federalist Society is
so concerned about power, unchecked power and yet, has, has uh, developed such robust
arguments for giving so much power uh, to one person in our government. The Federa- the Federalist Society has an
entire Article I project. I mean that it continues. Yes. It’s uh, it’s, and I’m a big fan of it. But I, I would say I would also make the distinction
between the argument for a unitary executive, which is what are the proper constitutional
powers of the executive especially when it comes to questions say of national security
that come out of uh, the, the vesting of the presidential po- the presidential power to
the executive and this other thing, which are these other powers, which when delegated
away from article one, that the, that the president is now using to, to used to, to
control vast areas of uh, government that they’re not supposed to be uh, controlling
at least not uh (crosstalk) in Congress- W- wherein, when you’re in a situation that
we, uh, we- that we face, which is a large administrative state. When, when one part of your argument is not
working and granted, you’re making it about Article I and Congress’ obligations but what,
when that argument is not working and has not worked arguably ever in our um, in our
constitutional structure then I just, I just wonder about the other project, about the
project of presidential power and giving that much control to one, to one person. My, my point is they’re consistent if the
objective here is actually restoring constitutional authority to its proper uh, order. Another question from this side. Thank you. Another area where Congress has been uh, giving
up a lot of its powers and a lot of the control has been actually war powers and uh, we have
seen the example with the recent airstrikes in Syria, which gen- generated uh, some outrage
and some discussion from a few of the usual suspects among the Republicans but mostly
has died down because a lot of people supported the policy is a policy and did not really
look too closely examined the legal, as uh, the legal aspects of the situation, which
for experts was somewhat, somewhat dubious. What is the level of the discussion um, among
in, in the federal society and among um, the experts pushing for reassertion of congressional
control over the fact that there’s been a significant deterioration in congressional
involvement over the years? Uh, I, I, I would uh, point, point out that,
that uh, a- again, it’s consistent with our, I was making that the most important power
of Congress has over war making or national security is through their normal legislative
powers through budgeting, through controlling expenditures um, and that’s what they’re not
doing. Uh, I think that the uh, that the executive,
I, I would make a unitary argument about the po- the power, the executives has, has extensive
powers legitimately but don’t stem from a legislature when it comes to national security
matters. Having said that, I mean um, I’ll leave the
Syria question aside for right now, I guess. (laughs)
Another question. Thank you guys all for the uh, fascinating
discussion. I wanted to especially thank you, Elizabeth,
for coming and doing this talk at the Federal Society and I especially wanted to praise
the first half of your talk and then raise a question about the second half. So I think it’s actually very good to be reminded
as, as conservatives uh, that the Constitution wasn’t just founded in order to or created
in order to restrain government actors and to protect, protect rights but also to enable
the federal government to do certain things that it couldn’t before. I think it’s absolutely right and I think
that we, as conservatives, often forget that but I think because the Constitution was going
to be instrumentalist in this way, the framers wanted to channel that power through certain
processes. And so for example, as a conservative, I don’t
think a progressive America would be unconstitutional. I mean, there might be some arguments that
it could be but I don’t think it would be necessarily unconstitutional. What we care about is process, so we do care
if a progressive America is imposed through a CFPB rather than a vote of Congress. So I think maybe your talk conflated those
two things, the instrumentalist nature of the Constitution and the processes towards
the instrumentalist nature uh, is supposed to be channeled. So I’ll turn this into, turn it on its head
and ask the question of actually Adam and Matt, how much do we is conservatives really
actually care that its agencies doing this instead of Congress? If 100% of what agencies are doing today was
enacted by Congress, would we really be any happier? So do we really care about process or do we
care about federal government power? What’s our true motivation here? I guess is it Wickard v. Filburn instead or
I’m, I’m just not sure what our actual motive, motives really are? Okay, I’m perfectly, perfectly comfortable
to disagree with both the process and the substance but (laughs) um, but, but I’ll put,
but I’ll bring up your point, right, that when Madison said or no, so I’m used to citing
on the wrong one. When Hamilton said that energy and the executive
is a leading character of good government, he stressed it wasn’t just in foreign affairs
of national security, he said, it was in the aesthetic administration of laws at home where
an energetic and government is important. And I do think sometimes as conservatives,
we, we, I overlook that part of Hamilton’s equation and so I, I’m glad you do point that
out. Like I said, the first Congress, one of the
first things they did was create agencies, right? And, and so we do need agencies to administer
the government and there’s going to be as Scalia said in, in the Mistretta opinion was
gonna be inherently policymaking in that administration of government. So I can’t easily draw a bright line but I
do think now, we’re well beyond with whatever it is. Um, yeah thank you so much for that question. I think that the question with the CFPB is
you know, whether you think it’s unwise as a policy matter um, in which case, of course,
it’s not a constitutional problem, um, that’s a political one um, or whether the constitutional
objections to it are valid and um, you know, when we looked at the textual limitations
on what Congress can do, the historical limitations, the way that the Supreme Court has interpreted
that um, that part of the Constitution, um, there didn’t seem to be a basis for the constitutional
arguments to the CFPB. Now you could say that that is because there’s
been um, a growth in the administrative state that the Congress has been complicit in that’s
a political problem but I don’t see it as a constitutional problem. Um, uh, that was a good question um, uh, but
actually yo- your comment there gets precisely to the, to the heart, the heart of the matter. Um, if you don’t see something uh, uh, is,
is, you see a political problem but not a constitutional problem but, but the faculty-
I don’t see a political problem either. I’m saying that some of y’all might. (laughs)
But the point is the, the change in how the, the, the government operates is a constitutional
problem and I don’t speak here in legal technical terms. I actually don’t care whether this court or
that court said this or that. I think as citizens, we have to, we have to
see that it’s not operating in a way that resembles uh, for a long time now, uh, what
we would broadly call government based on consent. That’s not a process question, that’s a question
of justice. And I think that that’s the heart of what
America means and what it’s, what it’s, what it is trying to show uh, is possible in, in
modern forms of governance. And I think if we missed that as conservatives,
if we, if we spend too much time in the weeds and we don’t see that that’s what is at issue
here, uh, we will lose this before and it’ll be too late at a certain point. We’re not there yet, right? That’s why we need more politics to have these
battles. The advantage of having something not done
by an agency uh, in the dark that takes long time to come out and, and uh, it’s, it’s hard
to debate in forcing it into the legislature. Again, Madison’s argument is when you force
in the legislature, you have what? Public debate. Uh, there’s deliberation and you have politics,
right? Mm-hmm. Um, Aristotle said that’s a form of reasoning,
um, that’s a good thing um, and that means we’re going to talk about what is just and
that’s what we ought to be doing and that’s the end. As Madison said in Federalist Papers. (laughs)
Looks like this might be our final question. So this question, I think, is mostly for Adam
and uh, Lisa but- Could you get closer to the mic? Sorry, sorry. This question’s mostly for Adam espe- and
I guess for Lisa Heinzerling as well. Since um, you touched on, Adam you touched
on uh, financing these agencies on um, in uh, appropriations for (inaudible) touch on
accountability and so I wonder if at least an easier first step solution is to have,
however, many appropriation bills do we have now, 13? And they’re, you know, there’s this enormous
bill State, Justice and something else gets rolled into one bill as opposed to having
you know, 57 or however many where EPA gets its own appropriations bill. And FDC gets its own one and if it gets bogged
down, so be it. And then that accountability problem is that
depending on which set of political divide you’re on, you can run around the country
and say, “Those you know, no good Congress people, they cut the legs under from your
favorite agency and now we can’t have clean air or something else.” or if you’re on the other side of the divide,
I, can you believe that they’re spending your hard-earned tax dollars on funding X, Y and
Z when we should be reducing deficit building up military force or whatever, right? Mm-hmm. Would that, at least, help Congress ac- rein
in control back of these administrative agencies? I mean the, the … We really just have one
um, appropriations bill now, right? Oh. I mean every year is just a big omnibus but
you’re right. The, in theory, there’s a, there’s a dozen
or so appropriations bills and that process, which is pretty modern, it was created for
a reason. It was created to correct problems that preceded
it. So I’m, I’m hesitant to suggest just you know,
off-the-cuff uh, big revisions to that but I do think the basic point is right. The fewer appropriations bills there are,
the less that money is tied to what agencies and the rest of government are doing, right? And set aside the fact that these giant face-offs
we have once a year over the bills, I think that divorcing the appropriations process
from the oversight process has real problems that are ever more apparent. And I don’t know how you reconnect the two. I’m not saying, hand appropriations powers
to the, to the subject matter committees but I’m saying, we do need to recognize the cost
of divorcing appropriations from the committees that are overseeing these agencies and find
a way to realign Congress’ power with Congress’ responsibilities. I don’t have problem in principle with trying
to, um, trying to make uh, individual representatives’ votes count on appropriations by perhaps making
the uh, separating uh, agencies appropriations. I don’t have a problem in principle with that
but let me just say that if you’re looking to budgetary decisions to rein in agencies,
then I think there’s a potential accountability gap. There are two, which is that you leave the
underlying statutes in place, the statutes that promise clean air and clean water and
safe medicines and safe food and on down the line and then you starve the agency, so they
can’t deliver on those promises. And then the question becomes, who’s responsible
for the failure of those agencies to deliver on their promises? Uh, that’s a fair point. The statutes are the statutes to the law,
there’s supreme, supreme law of the land and they should reflect national policy but sometimes
I’d suggest that statutes are as, as far as policy goes, statutes are what economists
would call uh, stated preferences and appropriations decisions strike me as something much closer
to revealed preferences. And if there’s a increasing gap between what
Congress wants to pay for a policy and what they say they want in a policy, that might
say more about the underlying statute in how far afield it is from real national policy
than, than we currently give it credit for. It makes the underlying statutes a lie. But it, it also points out the extent to which
the modern budgetary process in Congress itself is a terribly bureaucratic and if- inefficient
process. When the fact that we have, uh, used to be
13, now we have what, 12 appropriations bills, ha- has no connection to any rational principle. They could have as many as they want but they
can do it in whatever order they want and they can use it for strategic leverage if
they chose to. Uh, I mean the, the, the, the process too
often is tying Congress down from making the k- the kinds of decisions going back to under
legis- underlying legislation if they chose, that they’re not doing now and it’s no surprise
then that they just choose not to do it and it ends up in o- omnibus bills. It’s, it’s, it’s, it’s, it shows you the extent
to which Congress itself has become part, part of the administrative state. They’ve adjusted themselves to be um, to,
to parallel, to, to model, to mirror the administrative state itself. Yeah, but Lisa and I could probably argue
on this all the way out the door into the taxi cab, so, so I don’t to belabor the point
but, but I wouldn’t say the statute is a lie. I’d say the statute is a good faith statement
of aspirations, right? And as time progresses and we get further
from those statutes, whether it’s the Clean Air Act that’s 25 years old or the Communications
Act that’s almost uh, what, 80 years old, um, the appropriations process I think becomes
a much more clear statement of experience and our, our new policy views in light of
experience. And it’s unfortunate if they’re, if they are
increasingly divorced from statements of aspiration from a quarter century or three-quarters of
a century ago but I, I think they are, they are present reality. I think we’re going to have to leave it right
there. Please uh, join me and thanking
the panel.

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